On cross

Criminal defense attorneys' cross-examination strategies

May 2015

ByAnnette Simmons-Brown, CFE

"Defense attorneys distort the facts. They twist evidence. They will not only go to the mat for their clients, they will take that mat and toss it out the window as far as they can. They are not bound by the truth. They are bound to obfuscate it if it serves to get their clients acquitted. And they should be commended for it, and it is what makes the system work." (See "Law And Order," season five, episode 10,
House Counsel, Jan. 4, 1995, by Michael Chernuchin, Barry Schkolnick.)

As a Certified Fraud Examiner (CFE) and paralegal for a financial crime prosecution unit, I've testified in six criminal trials, and they were always educational. In fact, being cross-examined by a defense attorney in a criminal trial is one of the best ways to learn how to become a better CFE. (Note: Neither I nor the ACFE are endorsing obfuscation in the criminal justice system.)

Here are but a few of the effective strategies defense attorneys have deployed when cross-examining me in criminal trials, replete with sometimes painful transcripts.

GETTING YOU TO "YES"

CROSS: As I understood your testimony, you indicated that you became involved at some point in providing assistance related to condemnation matters, correct?

ASB: Right-of-way land acquisition and relocation with the possibility of condemnation.

CROSS: That's a yes then?

ASB: Yes.

CROSS: And so in that capacity you also did not work in real estate sales, correct?

ASB: That's correct.

CROSS: Now, as part of the county attorney's staff, you work with the prosecutor, correct?

ASB: That's correct.

CROSS: You are familiar with their theory of the case, correct?

ASB: Yes, I am.

CROSS: And you know what it is that the prosecutor wants you to say here in court, correct?

ASB: He wants me to say the truth.

(State of Minnesota vs. M. Pratt, July 2009)

The above excerpted transcript is a good example of "getting you to 'yes'." In several of the trials in which I testified — typically as a de facto financial analyst for documents previously introduced — defense counsel would lead me through a series of seemingly innocuous questions that prompted "yes" answers, and then they would slip in a question that included a conclusion or characterization (or even an outright misstatement). They'd then finish with, "Correct?" It's very easy to get into the momentum of repeatedly saying "yes" and many people have an innate desire to please. As simplistic as this sounds, it's always very important to listen to each word of each question and to answer truthfully and accurately. Many times I've had to respond, "I cannot answer with a simple yes or no to the question as it has been phrased."

The questioning about my employment also demonstrates a line of cross that's designed to imply my bias in favor of the prosecutor. Typically the prosecutors who have called me have simply asked me that question on direct to diffuse the subject's impact.

DIG INTO THE DETAILS

CROSS: By the way, with regard to the $96 amount there in the itemized list, did you find a record of that payment?

ASB: I do not recall finding a record of that payment in the bank records I reviewed.

CROSS: What about the outside bidder fee down at the bottom, $100?

ASB: I can't speak to that. I do not remember whether or not I found one or not. I don't believe I did.

CROSS: Was it important to you whether those payments were verified or not? In reviewing the documents?

ASB: It was important for me to be thorough in my search.

CROSS: But on Direct we only talked about certain amounts. We didn't talk about this $100 fee and whether you found it. But now we know that you didn't find it, correct?

ASB: I don't know if I did find it or not. As I sit here today, I have to say that.

(Later in same cross-examination)

CROSS: Ms. Simmons-Brown, if you don't know what goes into an Affidavit of Amounts Owing, how do you know if it is a lie or not a lie?

ASB: (pause)

CROSS: Answer is you don't know if it is a lie or not, do you?

ASB: I'm sorry?

CROSS: The answer would be that you don't know if it is a lie or not because you don't know what is supposed to go into those documents as a legal matter, correct?

ASB: I'm not sure I can answer that question. To me a lie is something that is not true as opposed to something that does not belong in a document.

(State of Minnesota v. M. Wayman, March 2009)

This is a good example of the defense counsel starting with smaller details of one aspect of the case that were difficult to remember (and somewhat afield from the prosecutor's theory of the case), to get me to demonstrate doubts or gaps in my memory. Their hope was that it would subsequently cast doubt on my overall testimony and memory, and/or would unnerve me on the stand. (In this case, it worked.)

FIND THE HOLES IN THE DIRECT EXAMINATION

These might be innocent holes that don't have much bearing on the facts of the case, but they might reveal an inconsistency with another witness' statement or your own statements on direct. I testified in a trial for a mortgage fraud case involving kickbacks on house purchases (State of Minnesota v. D. Walthall, July 2008, transcript not available).

I was in the home stretch when the defense counsel came up and showed me one of the State's exhibits. This was a listing sheet that showed an original price very close to the purchase agreement price, potentially torpedoing the State's assertion that the price had been inflated to build in the kickback. After almost fainting, I was able to recall and testify that the list price had been twice reduced by the time the defendant signed the purchase agreement — he built the kickback into the transaction by jacking the purchase price up to its original list price.

MINIMIZING CREDENTIALS OR PROFESSIONAL EXPERIENCE

CROSS: Ms. Simmons-Brown, you don't have a degree in accounting, do you?

ASB: I do not.

(State of Minnesota v. M. Przynski, December 2012)

CROSS: And you are not an attorney, correct?

ASB: That is correct.

CROSS: So, you don't have a legal opinion about what the amounts would properly be an Affidavit of Amounts Owing, correct?

ASB: That is correct.

(I'm including the following redirect from the prosecutor because it was so much fun.)

REDIRECT: Mr. (Defense Counsel) asked you on a number of occasions, if you knew what was supposed to be included in an Affidavit because you weren't a lawyer. Now, Ms. Simmons-Brown, I know you are not a lawyer but have you ever been under the impression that it was okay to tell lies in an Affidavit?

ASB: Quite the opposite.

REDIRECT: You have to be a lawyer to know that?

ASB: No.

REDIRECT: Counsel, back to you.

(State of Minnesota v. M. Wayman, March 2009)

The above are two examples of the standard-issue attempts to minimize the impact of my testimony by either minimizing credentials or highlighting the lack thereof.

CROSS-EXAMINATION 101: THE CROSS-EXAMINER SHOULD ONLY ASK QUESTIONS TO WHICH HE OR SHE ALREADY KNOWS THE ANSWER

CROSS: Ms. Simmons-Brown, the only difference between Exhibit 57 and the document you have, that follows Exhibit 30j, is the handwriting and the gray scale between the lines, correct?

ASB: That's not correct.

CROSS: Can you point to me the difference?

ASB: As you've indicated, there is no handwritten marginalia on Exhibit 57. The PCI logo, which is part of the State's exhibit 30j, is in the upper margin in the center of the document, whereas the PCI logo for your Exhibit 57 is to the left-hand margin. Furthermore, the ZIP code of (the subject property) appears on its own line, whereas in 30j the city, state and ZIP code appear on one line. Underneath that in your exhibit, there is the notation "Customer ID" and then on the next line there is the number "[EX47395]", whereas on the State's exhibit, "Customer ID [EX47395] is all on one line.

CROSS: Okay. So what you just described relates to the heading on the documents and not the numbers that are contained therein, correct?

ASB: I have not reviewed the documents contained therein. You asked if I recognized the document you were presenting as Exhibit 57, and I did not.

(State of Minnesota vs. M. Pratt, July 2009)

This shows how Cross-Examination 101 can be honored more in the breach than the observance, and shows the dangers of setting up an argument with a witness. In fact, I was surprised that defense counsel allowed me to rattle on as long as I did.

CROSS DONE RIGHT

The final excerpt demonstrates several of the concepts detailed above when cross is done right, much to my discomfort.

CROSS: Now, you're saying that a $1,500 withdrawal came out of the (victim's bank account) 12 hours before that $600 deposit was made, correct?

ASB: Yes.

CROSS: So we don't have a matching deposit from the withdrawal from (victim's bank account). In other words, we don't see a $1,500 deposit on that day, do we?

ASB: That's correct.

CROSS: And you're saying, then, without that $600, there would have been a bounce, right?

ASB: There would not have been sufficient funds to clear the check.

CROSS: Would you be surprised to know that there was a $1,000 overdraft protection on that account?

ASB: I was unaware of that.

CROSS: You didn't check.

ASB: I did not.

CROSS: So your conclusion about anything bouncing without that $500 is just a guess.

ASB: That is a guess.

CROSS: Why didn't you look at the overdraft stuff?

ASB: I was instructed to analyze documents in a certain way. I did not — I did not look at the account opening documents to see if there was any overdraft protection.

CROSS: Kind of an omission then, huh?

(State of Minnesota v. M. Przynski, December 2012)

Good criminal defense attorneys can, through their cross-examinations, make me feel like a complete idiot. I love that. It keeps me on my toes as a CFE, and it keeps the criminal justice system meaningful.

Annette Simmons-Brown, CFE, is a senior paralegal in the Hennepin County Attorney's Office in Minneapolis, Minnesota.

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